Licence Appeal Tribunal File Number: 20-005001/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Liana Tetruashvili
Applicant
and
Toronto Transit Commission
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Omar Makhatadze, Paralegal
For the Respondent:
Alexandra Vaiay, Counsel
Heard:
By way of written submissions
OVERVIEW
1Liana Tetruashvili, (“the Applicant”), was involved in an automobile accident on August 15, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The Applicant was denied certain benefits by Toronto Transit Commission, (“the Respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES
2The issues in dispute were identified and agreed to as follows:
a. Is the Applicant entitled to a non-earner benefit (“NEBs”) in the amount of $185.00 per week for the period from May 14, 2018 to August 15, 2019?
b. Is the Applicant entitled to an examination expense in the amount of $16,283.30 for catastrophic impairment assessments (“the CAT assessments”) recommended in a treatment plan submitted on August 7, 2020?
c. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for neurological assessment plan, dated July 3, 2018?
d. Is the Applicant entitled to an examination expense in the amount of $2,090.00 for a biopsychological assessment plan, dated June 11, 2018?
e. Is the Applicant entitled to a medical benefit in the amount of $2,004.96 for a physiotherapy treatment plan, dated July 19, 2018?
f. Is the Applicant entitled to a medical benefit in the amount of $2,305.13 for a driving assessment plan, dated March 15, 2018?
g. Is the Applicant entitled to a medical benefit in the amount of $1,971.70 for a physiotherapy treatment plan, dated June 4, 2018?
h. Is the Applicant entitled to a medical benefit in the amount of $2,893.03 for a psychological treatment plan services recommended in a treatment plan, dated June 26, 2018?
i. Is the Applicant entitled to a medical benefit in the amount of $701.54 for an occupational therapy treatment plan dated April 4, 2018?
j. Is the Applicant entitled to a medical benefit in the amount of $2,326.04 for a physiotherapy treatment plan, dated April 4, 2018?
k. Is the Applicant entitled to a medical benefit in the amount of $1,300.00 for psychotherapy services recommended in a treatment plan submitted on August 17, 2020?
l. Is the Applicant entitled to a medical benefit in the amount of $3,714.49 for a physiotherapy treatment plan dated August 17, 2020?
3Is the Applicant entitled to interest on overdue payment of benefits?
RESULT
[4] I find that the CAT assessments (as outlined below), the neurological assessment, and psychological treatment plan are reasonable and necessary as a result of the accident.
5The Applicant is not entitled to NEBs, and the remaining treatment and assessment plans are not reasonable and necessary as a result of the subject accident.
BACKGROUND
6The Applicant was a passenger on a public bus in Toronto which struck another vehicle in a perpendicular fashion while traversing an intersection. Closed-circuit video of the incident appears to show that the Applicant was in the process of rising from her seat during the incident and was jolted forward, causing her to strike a stanchion in front of her and fall to the ground. Emergency medical services attended at the scene of the accident and the Applicant was transported by ambulance to the nearby hospital where she was assessed. X-rays at the hospital initially showed a possible age-indeterminate compression fracture in the lower thoracic spine, but follow-up imaging confirmed that was not the case. The following day the Applicant went to her family physician, Dr. G. Gotesman, and complained of a severe headache. Dr. Gotesman assessed the Applicant and diagnosed her with a probable mild concussion and prescribed Tylenol and Advil to treat her injuries.
7The Applicant has a significant pre-accident medical history. She is a cancer survivor who had surgical interventions to address the disease and complications related to it, the most recent being in 2014. She continues to experience the after affects of those complications to-date. She has been disabled from working since 2006, due to her cancer diagnosis, treatment, and subsequent recovery with certain complications. The Applicant was taking prescription medication for back pain, vertigo, hypertension and acid reflux at the time of the accident.
8The Applicant claims that she suffered a concussion, possible mild compression fracture, impingement of her right shoulder, post-traumatic chronic migraines, chronic pain disorder, major depressive disorder and post-traumatic stress disorder as a result of the accident. To her, her injuries impair her ability to carry on a normal life, entitling her to NEBs and rendering the disputed treatment and assessment plans to be reasonable and necessary as a result of the accident.
NON-EARNER BENEFITS (“NEBs”)
9Pursuant to section 12 of the Schedule, NEBs are payable if the Applicant experiences a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to her activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, the Applicant must show that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.
10I find that the Applicant has failed to meet her burden to prove that she suffers a complete inability to carry on a normal life as a result of the accident.
11In short, the Applicant submits that she has lost her independence as a result of the accident, entitling her to NEBs. She submits that she was independent with all personal care, housekeeping, and home maintenance activities prior to the accident. She submits that following the accident she has been unable to care for herself and needs constant help with her personal care and housekeeping tasks. The Applicant submits that she can do only basic housekeeping tasks such as light dusting, or prepare simple meals, such as making a sandwich. She claims that she requires help with showering and nail care. She states that she must rely on her family for all her transportation needs and to fulfill her personal care and housekeeping tasks and that she relies on her son and daughter in law to help her with cooking, cleaning, showering, grooming, laundering, shopping, and transportation.
12The Applicant further claims that she used public transportation independently prior to the accident and enjoyed social outings like going for walks, visiting her friends, and going to church. She submits that now, she is afraid to use public transportation and relies on her son to take her to appointments or to church. To her, she submits, attending church on a regular basis represented a major aspect of her life prior to the subject accident, but she has only been to church three times since the accident.
13The Respondent submits that the Applicant does not suffer a complete inability to carry on a normal life. It infers that the Applicant’s headaches predate the accident and submits that the Applicant sustained no orthopaedic injuries as a result of the accident, and that her psychological injuries do not impair her to the extent that she qualifies for NEBs.
14I have reviewed the evidence and submissions and find that the Applicant has not met her burden to prove that she suffers a complete inability to carry on a normal life as a result of the accident. I find that the Applicant gives evidence of impairments but provides no compelling evidence to show that those impairments prevent her from engaging in substantially all of her pre-accident activities.
15The disability certificates are inaccurate and hold no weight as a result. The disability certificates by Dr. Mirian, chiropractor, dated September 14, 2017 and by Dr. R. Shetty, physiotherapist, dated March 12, 2018, both state that the Applicant’s predominant injury is a fracture of her thoracic vertebra. Yet, a fracture was ruled out following a bone scan on September 1, 2017. This error is repeated in the Functional Abilities Evaluation report by M. Curcio, chiropractor, dated November 21, 2017, and the Attendant Care Assessment by E. Poon, dated October 6, 2017.
16The Applicant was assessed by Dr. N. Belyakova, psychologist, who issued a report dated November 26, 2017. The assessment included a clinical interview and psychometric testing. Testing showed that the Applicant scored in the average to impaired range for mental flexibility, and severe range for symptoms of depression and anxiety. Dr. Belyakova diagnosed the Applicant with Major Depressive Disorder, Single Episode, Moderate, with Anxious Distress and Specific Phobia, Situational (travelling as a passenger). Notably, Dr. Belyakova’s report cited the Applicant’s history of cancer and high blood pressure but says that her health was “under control” and that she had no pre-existing pain at the time of the accident. A psychological progress report dated June 26, 2018 noted that the Applicant was improving but required additional support to manage her remaining symptoms of anxiety, depression, and passenger phobia.
17The Applicant was assessed by Dr. Efala, orthopaedic surgeon, who issued a report dated February 5, 2018. Dr. Efala diagnosed the Applicant with post-traumatic cervical spine, thoracic, and lumbar spine dysfunction with Musculo-ligamentous injury, degenerative disc disease of the cervical, thoracic, and lumbar spine, right shoulder myofascial pain, and left knee and ankle pain not yet diagnosed. From these injuries, Dr. Efala felt that the Applicant would have difficulty completing her tasks of daily living and her inability to endure prolonged postures may impact her social functioning. Dr. Efala opined that there was a probable causal relationship between the Applicant’s current complaints and the subject accident and recommended prescription medication, a referral to a multidisciplinary rehabilitation centre, an exercise and functional training program, physiotherapy and in-home assessments to re-evaluate her functionality. Notably, the Applicant reported a health history of cancer and high blood pressure and denied any other pre-accident medical problems.
18The Cognitive Assessment Report by J. Amchislavsky, occupational therapist, dated March 14, 2018, concluded that the Applicant is more likely than not experiencing difficulties with various activities of daily living that require memory, attention and concentration. Occupational therapist Amchislavsky conducted clinical attention and memory tests and found that the Applicant demonstrated mild-severe difficulties with attention and concentration, with the exception of basic auditory and visual attention, and normal results concerning her memory. The report ended with a recommendation for cognitive exercise training with a psychologist and occupational therapist, a neuropsychological assessment, and a tablet computer with a cognitive training program.
19The Applicant was assessed by Dr. I. Wilderman, physician, who issued a report dated April 20, 2018. In that report, Dr. Wilderman concluded that the Applicant’s psychological and physical functioning has changed significantly post-accident and that she was suffering from pre-existing medical difficulties but was learning to manage her condition successfully and function well. The report ends with recommendations for a psychological chronic pain assessment, neurological assessment, social-emotional assessment, MRIs of the right shoulder and left knee, and ultrasounds of the left ankle, right forearm, and bilateral hips. Notably, Dr. Wilderman cited a medical history of hypertension and cancer but says that the Applicant was otherwise in satisfactory mental and physical health at the time of the accident.
20The Driving Evaluation Report by Dr. E. Langis, dated May 22, 2018 concluded that the Applicant suffers from a Major Depressive Disorder, Single Episode, Moderate and Specific Phobia, Situation (passenger related). The assessment included a clinical session and psychometric testing which found that the Applicant’s scores indicated her depression was in the moderate range, anxiety in the severe range, and phobia in the moderate range. Notably, the Applicant denied any pre-accident pain complaints during the clinical session. Dr. Langis stated that the Applicant’s avoidance as a passenger has had a direct and negative impact on her normal routine and social functioning and recommended “in vivo” driving instructional sessions and cognitive behavioural therapy.
21The CNRs of Dr. Gotesman show that the Applicant complained of post-accident headaches and neck and back pain during visits in January and March 2018. Dr. Gotesman referred her to Dr. W. Pruzanski, rheumatologist, who met with the Applicant on June 22, 2018.
22The Rheumatologist Assessment report by Dr. Pruzanski, dated June 22, 2018, concluded that the Applicant has an impairment of her right shoulder which requires investigation, myofascial strains of the cervical area, right shoulder, right trapezium muscle, right parascapular area, nuchal area, right paraspinal group of muscles and lumbar spine. The Applicant was also diagnosed with right tennis elbow, limited mobility of her legs – probable that it is related to a lumbar injury, and chronic widespread post-traumatic pain syndrome directly related to the accident. Non-narcotic painkillers and muscle-relaxants are recommended as well as steroid injections for the right shoulder and elbow and nerve block injections in the lumbar spine and ultrasounds to address the right upper extremity and low back. Notably, the consultation report recorded that the Applicant “repeatedly stated that she did not have musculoskeletal problems prior to the accident.”
23With respect to her ability to engage in her pre-accident activities, the Applicant claims that attending church was an important aspect of her pre-accident life. However, except for her reports to various assessors, the Applicant has not provided evidence to support her submissions that she cannot go to church. In the same respect, there is no medical recommendation that she does not go to church or a report that finds her physically or psychologically disabled from attending. Perhaps her vehicular phobia impairs her ability to take herself to church, however, no person or piece of evidence confirms this. I know nothing of the barriers that prevent the Applicant from attending church and there is no reference to an inability to attend church service in any of many medical reports before me.
24In the same respect, there is no evidence, apart from her self-reporting, that shows that the Applicant is dependent on her son and daughter in law for transportation, her personal care and housekeeping tasks or that the Applicant is unable to socialize or go for walks. There is no evidence, such as an affidavit, from her son or daughter in law that confirms they provide the personal care, housekeeping, and transportation assistance that the Applicant claims. At times she has claimed to assessors that someone, presumably a personal support worker, attends at her apartment twice a week to help with housekeeping and personal care tasks, but there is no evidence from that person. Lastly, is there no evidence from friends or family that confirms that the Applicant is socially withdrawn, as she claims.
25I am unable to rely on the Applicant’s self-reported statements to assessors because she is an inconsistent historian when it comes to her health. The Applicant regularly denied pre-accident health conditions such as vertigo, and headaches, which the Applicant was referred by Dr. Gotesman for a brain MRI on January 25, 2017, and prior in 2015. The Applicant met with Dr. Gotesman with complaints of back pain in February and March 2016. In addition, Dr. Gotesman completed a Health Status Report on behalf of the Applicant for the Ontario Ministry of Community and Social Services dated April 4, 2016. That document noted that the Applicant is significantly disabled due to extensive cancer-related surgeries, and chronic back, groin, and right leg pain causing limited mobility and decreased exercise tolerance. Dr. Gotesman reported that the Applicant had medium or moderate limitations in physical strength, participating in sustained activity, walking 3 blocks without rest, and climbing 6 steps and Dr. Gotesman believed that the Applicant would never be able to attain gainful employment again due to her disability.
26The Applicant was assessed by Dr. M. Zarnett, orthopaedic surgeon, who issued an insurer’s examination, (“IE”), report dated April 20, 2018. Dr. Zarnett’s assessment revealed reduced and self-limited range of motion in the neck. The report also noted that the Applicant was inconsistent with her presentation and exhibited pain behaviours. Dr. Zarnett acknowledged the Applicant’s pre-existing back pain and that it may have been temporarily exacerbated but found no evidence of an orthopaedic or musculoskeletal impairment.
27A neurological IE report by Dr. J. Lazarou, was issued on April 20, 2018, following an assessment. Dr. Lazarou noted the Applicant’s complaints of headaches and neck, shoulder, back, knee, and ankle pain and that she denied any pre-accident neck or back pain. The examination revealed no evidence of mental status abnormalities. Dr. Lazarou concluded that the Applicant suffers from chronic migraine headaches, but suspected it was related to over-use of medications. Dr. Lazarou found that the Applicant did not have a complete inability to carry on a normal life, but also made recommendations which include reducing opioid intake, diarizing her headaches to determine and avoid triggers, exercise 3-4 times per week, and to try yoga or meditation.
28Dr. J. K. Chadda, psychologist, assessed the Applicant and issued an IE report dated April 20, 2018. The assessment included a clinical interview and review of the Applicant’s medical records. Dr. Chadda determined that the Applicant is experiencing a resolving Adjustment Disorder with Mixed Anxiety and Depressed Mood with Specific Phobia (Passenger) as a result of the accident. Dr. Chadda determined that the Applicant was recovering from the psychological injuries at that time and did not suffer a complete inability to carry on a normal life as a result of her psychological injuries.
29A review of the evidence leads me to conclude that the Applicant sustained a concussion and psychological and soft tissue injuries are a result of the accident. Her soft-tissue injuries are chronic and imposed on her pre accident impairments, and as a result, the Applicant is impaired by neck, back and shoulder pain. However, I find no compelling evidence to show that impairments arising from her accident-related injuries prevent the Applicant from engaging in substantially all of the life tasks that she engaged in before the accident. Likewise, there is no evidence to show that the Applicant’s psychological condition impairs her to the extent that she suffers a complete inability to carry on a normal life. Considering this, I find that the Applicant has not met her burden to prove entitlement to NEBs.
CAT ASSESSMENTS
30The Applicant claims entitlement to the CAT assessments to explore whether she is catastrophically impaired and submits that it is reasonably possible that she is catastrophically impaired as a result of the accident.
31The Respondent submits that the CAT assessments are not reasonable and necessary because the Applicant sustained soft-tissue injuries in the accident and that the evidence suggests that her current complaints are not as a result of the accident.
32For reference, a breakdown of the goods and services proposed in the CAT assessments are as follows:
(i) $2,000.00 for a comprehensive file review;
(ii) $2,000.00 for a neurological assessment and report;
(iii) $2,000.00 for a physiatry assessment and report;
(iv) $2,000.00 for a psychological assessment and report;
(v) $2,000.00 for an occupational therapy assessment;
(vi) $2,000.00 for a situational occupational therapy assessment;
(vii) $2,000.00 for a catastrophic impairment summary and overall rating
(viii) $200.00 for the catastrophic impairment application form (if necessary);
(ix) $200.00 for the OCF-18 proposing the CAT assessments; and
(x) $10.00 for personal protective equipment for the Applicant.
33I find that the CAT assessments are reasonable and necessary, subject to the funding limit for assessments noted in section 25 of the Schedule. As shown in the above analysis of the medical evidence, the Applicant sustained physical and psychological injuries as a result of the accident. These injuries, combined with the Applicant’s pre-existing disability, causes a considerable level of physical and psychological impairment. Considering her current level of impairment and the recommendation from Dr. L. Becker, physiatrist, I find it reasonable and necessary to investigate whether the Applicant is catastrophically impaired as a result of the accident.
34I prefer the January 8, 2021 letter from Dr. Becker over the paper review report of Dr. Platnick. In the letter, Dr. Becker noted that the Applicant sustained a concussion, sprain and strain injuries, an adjustment disorder with specific phobia, and unresolved headaches as a result of the accident. Dr. Becker goes on to say that the Applicant’s injuries have resulted in a functional deterioration in multiple areas of daily living in an already vulnerable individual. Dr. Becker believed that there is potential that the Applicant meets the Catastrophic impairment threshold and states that Dr. Platnick’s opinion in the paper review report is based on assessments in 2018 and that the Applicant has deteriorated since then.
35Dr. Platnick issued a paper review report dated November 27, 2020 and an addendum report dated February 26, 2021. The paper review report is not before me. The Addendum report notes that Dr. Platnick reviewed Dr. Becker’s January 8, 2021 letter and the paper review report dated November 27, 2020 and maintained that the Applicant’s soft tissue injuries resolved and that she does not have any significant residual injuries or impairment. Dr. Platnick concluded that the CAT assessments are not reasonable and necessary to treat or assess the Applicant’s accident related injuries.
36I agree with Dr. Becker that it is reasonable to reassess the Applicant at this stage to determine whether she meets the threshold for a catastrophic impairment as a result of the accident. As discussed in the reports analyzed above, the Applicant is experiencing a considerable amount of disability and there is reasonable potential that she meets the threshold. The assessments will give information on the extent of her accident-related injuries and whether the Applicant meets that threshold. To me, Dr. Platnick’s opinion is less persuasive than Dr. Becker’s because Dr. Platnick relies on an assessment from three years prior and does not consider the Applicant’s psychological health at all.
Cost of CAT Assessments
37The Applicant claims that the CAT assessment fees are reasonable and necessary. She submits that two occupational therapy assessments proposed are required because the activities of daily living and community assessment will evaluate her mobility and personal care needs at home as well as outside in the community, including factors such as road safety, interacting with others, and budgeting. She submits that the second, situational assessment will evaluate the Applicant’s physical, cognitive, emotional, and functional impairments.
38The Respondent submits that two occupational therapy assessments is excessive and that the Applicant is not entitled to additional funding for a comprehensive file review.
39I find that the Applicant is entitled to the two occupational therapy assessments. To me, the Applicant’s case is remarkably similar to The Applicant v. State Farm Mutual Automobile Insurance Company, 2020 CanLII 57374 (ON LAT) (“18-605”).1 The Applicant in 18-605 was entitled to two occupational therapy assessments because one assessment examined the Applicant’s level of functioning and performance within her home and the other assessment examined her level of functioning when specific demands of various activities were placed upon her. The Applicant’s case is similar in that it proposes the same two occupational therapy assessments discussed in 18-605, which were proposed by the same catastrophic impairment assessment team who proposed the Applicant’s CAT assessments.
40I find that the Applicant is not entitled to a comprehensive file review. As noted in 16-004501 v. The Sovereign General Insurance Company, 2018 CanLII 13158 (ON LAT), a file review is a necessary part of an assessment and it is included in the $2,000.00 funding limit noted in section 25(5) of the Schedule.2
The Respondent’s Denial of the CAT Assessments
41In addition to her arguments above, the Applicant also submits that the denial of the CAT assessments is defective because the Respondent referred to section 45 of the Schedule, which addresses applications for a determination for catastrophic impairment, instead of section 25, which addresses the costs of examinations for the purpose of preparing an application under section 45 of the Schedule.
42I agree with the Applicant and find that the CAT assessments are properly proposed pursuant to section 25 of the Schedule, and that the Respondent’s denial failed to provide the medical and all other reasons for the decision. However, in this scenario, the Respondent’s failure to comply with section 38 has no influence on the Applicant’s entitlement to the CAT assessments.
43Pursuant to section 38 of the Schedule, the Respondent is required to reply to a treatment and assessment plan within 10 business days. If the Respondent refuses to pay for the benefit claimed, it must advise the Applicant of that and provide the medical and other reasons for the denial. If the Respondent fails to comply, the Applicant is entitled to the goods and services described in the plan and incurred during the period starting on the 11th business day and ending on the day the Respondent complies with the notice requirements. The provisions in section 38 ensure that the Applicant and Respondent have timely and informative communication when submitting, approving, or denying treatment and assessment plans.
44There is no evidence or submissions showing that the Applicant has incurred the costs associated with the CAT assessments. As a result, section 38(11)(2) does not apply and the Applicant is not entitled to payment for any of the goods and services described in the treatment and assessment plan.
THE DISPUTED TREATMENT AND ASSESSMENT PLANS
45The Applicant claims entitlement to the remaining treatment and assessment plans in dispute. She did not address any of the treatment and assessment plans individually, but submits that the plans are reasonable and necessary as a result of the accident because she sustained physical and psychological injuries, has not reached maximal recovery from those injuries, and that she struggles with her limitations and requires the goods and services proposed in the disputed treatment and assessment plans.
46The Respondent submits that the disputed treatment plans are not reasonable and necessary according to the IE assessors who examined the Applicant. The Respondent directs me to a corresponding report for each treatment and assessment plan, which I will address as necessary.
47I must first address the Applicant’s lack of submissions regarding the disputed treatment and assessment plans. While there is no formula on how written submissions should address treatment and assessment plans, there remains a minimum requirement to direct the Adjudicator to evidence which substantiates the Applicant’s claims for the goods and services proposed. The Applicant’s submissions are too broad to address any of the treatment and assessment plans individually.
48For the most part, the Applicant has not met her onus to prove entitlement to the disputed treatment and assessment plans. Nevertheless, there is a substantial amount of evidence and qualified medical opinions before me. I am able to make the following findings based on the evidence.
NEUROLOGICAL ASSESSMENT PLAN DATED JULY 3, 2018
49I find that the neurological assessment is reasonable and necessary for the Applicant’s accident related injuries. The Respondent directs me to the IE report by Dr. Lazarou, which concluded that the Applicant’s headaches were related to medication overuse and made the recommendations discussed earlier. To me, Dr. Lazarou’s opinion confirms that the Applicant indeed has an impairment due to persistent headaches and she is entitled to seek an opinion from a professional of her choosing to determine the extent of that impairment and ascertain the appropriate treatment. Further, I am aware that the Applicant will participate in a neurology component as part of the CAT assessments. However, I recognize that the purpose of that assessment is to determine the extent of the Applicant’s neurological impairment and to quantify the impact of the impairment as it relates to a determination of catastrophic impairment. Unlike the assessment in dispute here, that neurological assessment will not provide any treatment recommendations, which I find is a necessary component of the July 3, 2018 plan before me.
BIOPSYCHOSOCIAL ASSESSMENT PLAN DATED JUNE 11, 2018
50I find that the biopsychosocial assessment is not reasonable and necessary. This assessment involves an interview with a social worker to identify the Applicant’s skills and ability to use her own resources and those in the community to resolve problems and to determine if she can benefit from community resources. Yet, there is no evidence showing that the Applicant requires assistance accessing community resources. For example, Dr. Gotesman’s CNRs show that the Applicant accesses disability benefits through the Province and the Applicant reported to assessors that she has assistance, presumably in the form of a personal support worker, who does home visits twice a week. It is not reasonable and necessary to assess whether the Applicant can benefit from community resources when the evidence shows that the Applicant currently has access to community programs and there is no evidence showing any need for additional access.
PHYSIOTHERAPY TREATMENT PLAN DATED APRIL 4, 2018
51I find that this physiotherapy treatment plan is reasonable and necessary for the Applicant’s accident related injuries. As noted previously, Dr. Efala assessed the Applicant and diagnosed her with pain and dysfunction and recommended an exercise program and physiotherapy, amongst other things.
52I prefer Dr. Efala’s recommendation over the opinion of Dr. Zarnett in the IE report dated April 20, 2018 and addendum report dated January 14, 2019. Dr. Efala’s recommendation stems from an opinion that is similar to the Applicant’s other treating physicians, specifically Dr. Pruzanski, who diagnosed her with chronic widespread post-traumatic pain syndrome directly related to the accident. In contrast, Dr. Zarnett felt that the Applicant sustained nothing but uncomplicated soft tissue injuries and focused on her inconsistencies and pain and self-limiting behaviours. To me, Dr. Efala’s opinion and recommendation for additional treatment is more persuasive than Dr. Zarnett’s because the self-limiting behaviour noted by Dr. Zarnett does not automatically render her pain or impairments to be false or not warrant further treatment.
PHYSIOTHERAPY TREATMENT PLANS DATED JUNE 4 and JULY 19, 2018 and AUGUST 17, 2020
53I find no compelling evidence that indicates that these treatment plans are reasonable and necessary.
54The June 2018 treatment plan proposes functional exercise and chiropractic treatment, the July 2018 treatment plan proposes functional exercise only, and the August 2020 treatment plan proposes exercise equipment including a back roll, heat pad, tens unit and guided exercise.
55While the Applicant sustained impairments as a result of the accident, I see no recommendation for active therapy contemporaneous with these treatment plans. The reports of Dr. Wilderman and Dr. Pruzanski are the most relevant and contemporaneous reports relating to these treatment plans. The assessors both recommended numerous interventions, as discussed previously, but none of them involved active therapy. Further physiotherapy or active exercise is not reasonable and necessary in light of the other recommendations from Dr. Wilderman and Dr. Pruzanski.
DRIVING EVALUATION ASSESSMENT PLAN DATED MARCH 15, 2018
56The Respondent agreed to fund this treatment plan in full. It is not in dispute.
PSYCHOLOGICAL TREATMENT PLAN DATED JUNE 26, 2018
57I find that this psychological treatment plan is reasonable and necessary, based on the evidence. The progress report of Dr. Belyakova, dated June 26, 2018, notes that the Applicant’s psychological health has improved but she required additional therapy. Similarly, the driving evaluation report of Dr. Langis, dated May 22, 2018, also found that the Applicant continued to experience a major depressive disorder and passenger phobia and recommended additional psychological treatment.
58I find the opinions of Dr. Belyakova and Dr. Langis more compelling than Dr. Chadda. Dr. Chadda mostly agreed with Dr. Belyakova’s assessment but felt that further treatment was not reasonable and necessary because the Applicant was improving at the time of the March 27, 2018 assessment and that it is expected that no further treatment would be required. To me, the opinions of Dr. Belyakova and Dr. Langis, recommending further psychological treatment, hold greater weight than Dr. Chadda because Dr. Chadda anticipates that the Applicant will require no further treatment following the completion of her first psychological treatment plan. Whereas, in contrast, the opinions of Dr. Belyakova and Dr. Langis are rooted in assessments which occurred following the Applicant’s participation in psychological treatment, providing a more accurate account of her psychological injuries and any requirement for treatment. I find the psychological treatment plan reasonable and necessary based on the opinions and recommendations of Dr. Belyakova and Dr. Langis.
OCCUPATIONAL THERAPY TREATMENT PLAN DATED APRIL 4, 2018
59I find that the occupational therapy treatment plan is not reasonable and necessary.
60This treatment plan seeks funding for a tablet computer and cognitive training software and was made following a recommendation in the cognitive occupational therapy assessment by J. Amchislavsky, dated March 14, 2018. Occupational therapist Amchislavsky made the recommendation after identifying cognitive difficulties during testing. However, in his occupational therapy assessment dated May 9, 2018, H. Lebovic found the treatment plan not reasonable and necessary because there was inconclusive evidence of the effectiveness of the proposed software and it was inferred that the Applicant could access similar programs via her desktop computer. Instead, occupational therapist Lebovic recommended that the Applicant take part in real-life treatments aimed at improving cognitive functioning rather than cognitive training products, like the one proposed. I find occupational therapist Lebovic’s recommendation to be logical and prefer it over that of J. Amchislavsky.
PSYCHOTHERAPY TREATMENT PLAN DATED AUGUST 17, 2020
61I find no compelling evidence to indicate that the psychotherapy treatment plan is reasonable and necessary. While it is clear that the Applicant sustained psychological injuries as a result of the accident, I find no contemporaneous evidence or recommendation for this psychotherapy plan. I am unable to find this treatment plan reasonable and necessary without any supporting evidence from the time when the plan was proposed or thereafter.
CONCLUSION
62The Applicant was involved in an accident on a city bus and sustained a concussion and soft tissue and psychological injuries as a result. She has a remarkable pre-accident health history which includes a bout with cancer which resulted in surgical interventions which she continues to experience complications from to-date. The combination of her pre-accident health and her accident related injuries has caused her to experience both psychological and physical impairments.
63Despite her impairments, I am unable to conclude that she suffers a complete inability to carry on a normal life as a result of the accident. There is insufficient evidence to show the effect of her impairments. As a result, I am unable to find that she experiences a complete inability to substantially engage in her pre-accident activities and thus, find that she has not met her burden to prove entitlement to NEBs.
64However, the Applicant’s injuries, both from the accident and pre-existing, are significant enough to warrant a battery of assessments to determine whether she sustained a catastrophic impairment as a result of the accident. For this reason and those outlined earlier, I find that the catastrophic impairment assessments are reasonable and necessary, but for the exception of the comprehensive file review fee. I find the file review fee to be not reasonable and necessary because a file review is an essential part of an assessment and the fee for it is included in the $2,000.00 cap provided by section 25(5) of the Schedule.
65The neurological assessment is reasonable and necessary, as well as the psychological treatment plan. The Applicant is entitled to payment for the goods and services incurred and properly invoiced. If the Applicant has not incurred any of the goods and services proposed in the treatment and assessment plans, she may now do so, and the Respondent is liable to payment for same. Interest is payable pursuant to section 51 of the Schedule.
66I find that the Applicant has not met her burden to prove that the remaining treatment and assessment plans in dispute are reasonable and necessary. She is not entitled to those treatment and assessment plans, nor interest.
Released: December 17, 2021
Brian Norris
Adjudicator